Employees have the same employer. However, they carry out their work in different establishments. Moreover, they are not carrying out the same work. Can a claim for equal pay. By female employees nonetheless be pursued against the common employer on the basis that the work if of equal value to the work of male colleagues at a different establishment of the same employer? Yes, says the ECJ in Case C-624/19, K v Tesco, Judgment on 3 June 2021. The male employers were an appropriate comparator. Retained EU law was clear and precise and had direct effect.
Procurement Policy
June 3rd, 2021 by James Goudie KC in Decision making and ContractsThe Cabinet Office has issued a National Procurement Policy Statement with immediate effect. This amongst other matters requires contracting authorities to have regard to national strategic priorities for public procurement when exercising their functions relating to procurement. These are (1) creating new businesses, new jobs and new skills, (2) tackling climate change and reducing waste, including contributing to the target to reduce greenhouse gas emissions to net zero by 2050 and delivering environmental benefits,
and (3) improving supplier diversity, innovation and resilience. Authorities should take a “broad view” of value for money that includes the improvement of social welfare or wellbeing, balanced with delivery of the core purpose of the contract.
Delegation
June 2nd, 2021 by James Goudie KC in Decision making and ContractsThe Planning Committee of a local authority resolves to grant planning permission for a mixed use development. It does so subject to the developer entering into: “an appropriate legal agreement.” Council officers entered into a s 106 agreement which made affordable housing provision. They did not return to the Committee. Did they act beyond their delegated authority? No, says the Court of Appeal in R (Flynn) v Southwark LBC (2021) EWCA Civ 827, at paras 39-63 inc & 95-97.
Rectification
May 28th, 2021 by James Goudie KC in Decision making and ContractsIn Tyne & Wear Passenger Transport Executive v National Union of Rail etc Workers (2021):EWHC 1388 (Ch) it is held that a collective agreement can be rectified. Rectification is not confined to legally binding contracts: para 58 and following. The jurisdiction to rectify is quite general. It may be exercised in respect of a “wide range of contracts and documents inter partes.”
Habitats
May 28th, 2021 by James Goudie KC in Planning and EnvironmentalIn R (Wyatt) v Fareham BC (2021) EWHC 1434 (Admin) Jay J dismissed 8 grounds for judicial review of the Council’s decision to grant outline planning permission for a housing development, notwithstanding advice to the contrary from Natural England on habitats grounds and in accordance with the precautionary principle. Applying an appropriate margin of appreciation, in an area which is technical and complex, the Judge was not persuaded, on a Wednesbury basis, that the assessment carried out for the purposes of the planning application was otherwise than sufficiently precautionary.
Rate Relief
May 28th, 2021 by James Goudie KC in Council Tax and RatesThe issue in Nuffield Health v Merton LBC (2021);EWCA Civ 826 was whether Nuffield Health, a registered charity, was entitled to mandatory relief from non-domestic rates in respect of its occupation of fitness and well-being centres, notwithstanding that membership fees at market rates were payable. The statutory basis of the claimed relief was that (1) it was a charity, as Nuffield Health is, or the trustees of a charity, AND (2) the hereditament was used “wholly or mainly for charitable purposes”, as defined in the Charities Act 2011, that is “for the public benefit”. The Court considers the public benefit test.
Breach of Procurement Rules
May 28th, 2021 by James Goudie KC in Decision making and ContractsIn R (Trinity College) v SoS for MHCLG (2021) EWHC 1355 (Admin) the commercial arm of Trinity College Cambridge applied unsuccessfully for judicial review of the refusal by the SoS to grant it funding under the European Regional Development Fund for the creation of a research hub at the Cambridge Science Park. In relation to the main project building contract, the claimant, albeit not a contracting authority, was in breach of the procurement rules applicable to ERDF projects. The SoS was bound to reject the application because the amount of the grant would have to be reduced and then the project would not be a viable candidate for ERDF support.
Pension Fund Consequences of TUPE Transfers
May 27th, 2021 by James Goudie KC in Land, Goods and ServicesWhen a local authority enters into a contract for services with a body that is admitted to the LGPS terms may be agreed with respect to pension risk. R (Enterprise Managed Services Ltd ) v SoS for MHCLG and Northamptonshire Councils (2021):1436 (Admin) concerns when the contract comes to an end and the contractor/employer exits the LGPS and there is a deficit in relation to the liability to pay benefits.
In this context the LGPS Regulations have been amended. Bourne J holds that the amendments are lawful. They are not invalidated as being unjustifiably and unlawfully retroactive and retrospective, contrary to any of common law, ECHR Arts 6, 14 and 1/1, or EU State Aid provisions.
Allocation Schemes
May 27th, 2021 by James Goudie KC in HousingPart 6 of the Housing Act 1996 deals with the allocation of permanent social housing. Every local housing authority has to have in place allocation scheme. This must be framed so as to secure that a “reasonable preference” is given to certain persons. These include those occupying overcrowded accommodation.
AONB
May 24th, 2021 by James Goudie KC in Planning and EnvironmentalR (Cross) v Cornwall Council (2021);EWHC 1423 (/Admin) was a successful judicial review of a grant of planning permission for a proposed development in an Area of Outstanding National Beauty. The Council had failed to provide adequate reasons. Fairness required a formulated statement of reasons at common law, even though the proposed development was only of one dwelling, because (para 76) :-
- The site was in a highly sensitive cliff-top setting on the Heritage Coast and in the AONB;
- The Committee departed from the Officers’ Report and the Development Plan;
- The Officer Recommendation was that the development would give rise to unacceptable harm to the AONB; and
- There was extensive public opposition to the development.